2014 PLP 660 (YLR)

ABDUL MAALIK GADDI, J.

By this order I intend to decide the above Criminal Miscellaneous Application under section 561-A, Cr.P.C, filed by applicants/ accused

1. Abdul Malik,

2. Raheem Bux,

3. Muhammad Siddique, and

4. Ameer Bux, all by caste Brohi, who are allegedly involved in Crime No.20 of 2013 of Police Station Veehar, District Larkana, under sections 302, 324, 506(2), 338-C, 34, P.P.C. Briefly, the facts of the prosecution case are that on 22-8-2013, accused (1) Abdul Malik, (2) Abdul Razak, (3) Raheem Bux, (4) Muhammad Siddique, all four armed with guns, (5) Ameer Bux, arm with rifle, (6) Alam, armed with gun, (7) Ali, armed with pistol, (8) Ilyas, armed with rifle, intruded into the house of complainant Yar Muhammad Brohi and accused Abdul Malik allegedly fired directly at Mst. Muradan, who received injuries and fell down; accused Raheem Bux fired at Mst. Zulekhan, who also sustained injuries at fingers of her left hand and accused Alam fired at complainant at his right side ribs. After that, on the cries of complainant party the accused persons went away. Mst. Muradan succumbed to injuries later-on along with a male baby of 8 months. The complainant consequently lodged such F.I.R. The case was investigated by the police and on 6-9-2013 a report under section 173, Cr.P.C. was presented by the Investigating Officer of the case before the learned Civil Judge and Judicial Magistrate, Dokri, placing the names of present applicants/accused were placed in Column No.2. The learned Magistrate, however, did not agree with report under section 173, Cr.P.C. submitted by the Investigating Officer of the case to the extent of placing the names of applicants in Column No.2 of the challan and passed the impugned order, whereby he joined the applicants/ accused and recorded following observations:-- "The complainant's version is fully supported by medical evidence, the memo of injury was prepared by police official on same day of incident. Witnesses fully supported the version of F.I.R. with specific role assigned to accused. All accused are nominated in the F.I.R. with their role including those accused who were let-off by police and kept their names in Column No.2. As a whole prima facie case is established. Therefore, I take cognizance for the offence mentioned in the F.I.R., against all accused persons nominated in the F.I.R. Offence is triable by the Court of Hon'ble Sessions Judge. Issue N.B.Ws against all accused persons. I.O. did not move any application under section 169, Cr.P.C. for releasing accused kept in Column No.2. I.O. has committed illegality and irregularity that in spite of presence of accused before him he has not arrested them and it is silent about their release. How they were released. There is no approval letter from superior authority, hence releasing accused in Column No.2 is without legal justification and same is refused." Being aggrieved and dissatisfied with the impugned order dated 6-9-2013 the applicants filed this criminal miscellaneous application. I have heard the learned Advocate for the applicants/accused, learned State Counsel and have gone through the case file carefully. It is contended by the learned counsel for the applicants that the order of the learned Magistrate is bad in law and in violation of order dated 8-11-2010 passed by this Court in Criminal Miscellaneous Application No.S-165 of 2010. He has further submitted that the applicants have not been heard before passing the order against them, which is also in violation of fundamental law and in contravention of universal dictum "no one should be condemned unheard." The learned counsel further argued that the order of the learned Magistrate is harsh and has been passed in hot and haste. However, the learned Advocate for applicants stated that he would be satisfied if the order of issuance of N.B.Ws against the applicants is suspended as the applicants are ready to face the trial. In support of his arguments learned Counsel for the applicants has relied upon the unreported order dated 8-11-2010 passed by this Court in Criminal Miscellaneous Application No.S-165 of 2010 Re: Loung Khan and others v. The State and order dated 11-12-2002 passed by the Hon'ble Supreme Court of Pakistan, in Criminal Petition No.105-K of 2002 Re: Shah Murad and others v. The State. The learned State Counsel conceded to the extent that the N.B.Ws issued by the trial Court against the applicants/accused be converted into bailable warrants. Indeed, there is no cavil with the proposition that the concerned Magistrate is not merely a post office to send up all accused nominated by the police for trial and let-off those placed in Column No.2 of the challan, as is held by the honourable Supreme Court of Pakistan in number of cases. In my view, the Magistrate has to apply his conscious mind and thereafter make up his mind to agree or disagree with the police report. Indeed, he takes cognizance of the offence and not the particular person named in the challan. Consequently, if the Magistrate decides to join the person who has been placed in Column No.2 of the challan, he is duty bound to summon him or them. This may also include using coercive process viz., issuance of non-bailable warrants and proceedings under sections 87 and 88, Cr.P.C. if such person despite efforts did not appear before the Magistrate. Here in this case the applicants, as per record, have been cooperating with the police. Their names were placed in Column No.2, then it would be indeed harsh to issue non-bailable warrants against them in the first instance. In such case, the Magistrate should in the first instance issue bailable warrants and if accused is/are not appearing, then coercive method should be adopted. Consequently, in this case, non-bailable warrants issued against the applicants are converted into bailable warrants. The applications are directed to present themselves before the trial Court immediately and if they did not appear before the concerned Court, then in the first instance bailable warrants be issued against them and then coercive methods may be adopted. In this regard I am fortified with the unreported order dated 8-11-2010 passed by this Court in Criminal Miscellaneous Application No.S-165 of 2010 Re: Loung Khan and others v. The State, order dated 24-9-2012 passed by this Court in Criminal Miscellaneous Application No.S-74 of 2012 Re: Muhammad Younis and another v. The State, and order dated 11-12-2002 passed by the Hon'ble Supreme Court of Pakistan, in Criminal Petition No. 105-K of 2002 Re: Shah Murad and others v. The State, Needful shall be done within two weeks from today. In view of what I have observed above, the instant criminal miscellaneous application stands disposed of in the above terms. HBT/A-121/K Order accordingly